This is a sur-reply, meaning we've now stepped outside of the normal motion practice of the ABA format. You could compare it to being in overtime or into extra innings. IBM asked [PDF] to be able to file this, SCO opposed [PDF], but the judge allowed it before IBM even had time to answer SCO's opposition, so fast in fact that there's no document filed. IBM's motion is dated April 20th, as is SCO's opposition memo, and so is Kimball's order. Here is what SCO argued:

SCO opposes IBM’s Motion because IBM has failed to make any showing of any need for an exception to the rule that the moving party, in this instance SCO, is entitled finally to respond to the non-moving party’s arguments. IBM’s proposed sur-reply contains nothing more than IBM’s broad assertions that IBM’s arguments are correct and that SCO’s are wrong; the fact that IBM has sought leave to file a brief of up to 40 pages in length on the issue serves to underscore the impropriety of IBM’s effort to have the “last word” in the briefing. IBM, like any non-moving party, is entitled to respond to SCO’s arguments at oral argument. Nothing in IBM’s proposed sur-reply warrants a departure from the normal sequence of briefing.

And then the response from Judge Kimball, from the Pacer entry, and as you can see, SCO's arguments didn't fly:

1033 -
Filed & Entered: 04/20/2007
Order on Motion for Leave to File
Docket Text: DOCKET TEXT ORDER granting [1031] IBM's Motion for Leave to File Sur-Reply. In addition, SCO may file a response to IBM's sur-reply memorandum within 14 days. Signed by Judge Dale A. Kimball on 4/20/2007. No attached document. (awm)

IBM's accusation was serious, so he wants to hear what they have to say, but he is allowing SCO to respond to this as well, as you see, so they do get the last word they asked for. So the bizarre show goes on. We're in Wonderland now.

But if SCO's plan was to annoy IBM into a settlement, that strategy has failed. IBM shows itself patiently willing to answer each and every nonsensical bit SCO comes up with, until the end of time, if necessary. It isn't every day you see a party in litigation quoting from Alice in Wonderland (actually Through the Looking Glass). But this litigation has reached that level of peculiar. I do think one has to ask why the SCO legal team allowed the client to bring this motion, nay, this case, at all. It's atypical on a scale I can't explain.

IBM begins like this:

IBM’s opposition brief debunks the arguments offered by SCO in support of its objections to the Order and its motion to amend its Final Disclosures. Nothing in SCO’s reply papers revives any of SCO’s arguments or justifies the relief it seeks. But SCO’s reply papers distort Judge Wells’ order, misstate IBM’s position and mischaracterize the applicable law and evidence.

IBM's attorneys are the most polite on planet earth, and this is how they begin, that they are able to "debunk" what SCO has told the court and that SCO is essentially playing games and not playing fair. And they proceed to debunk each and every SCO argument, labeling them baseless, misplaced, meritless, misguided, untenable, fallacious, "sophistry — reminiscent of Humpty Dumpty", bizarre, flawed, unsupported and wrong. Worse, from SCO's standpoint, IBM quotes SCO's own words to prove SCO wrong.

Why was this nutty case brought in the first place? And why does SCO keep going when the outcome is now fairly obvious? That's the part I don't comprehend. Surely they have to know that sanctions are a possibility if they persist past a point. In fact, I see the language in IBM's Motion for leave to file this sur-reply as perhaps building to exactly that:

IBM’s opposition brief debunks the arguments offered by SCO in support of its objections to the Order and its motion to amend its Final Disclosures. Nothing in SCO’s reply papers revives any of SCO’s arguments or justifies the relief it seeks. But SCO’s reply papers distort Judge Wells’ order, misstate IBM’s position and mischaracterize the applicable law and evidence. In this regard, SCO further claims that IBM failed to respond to each of the arguments advanced in SCO’s objections, and implies that IBM has therefore conceded those points SCO contends IBM failed to answer. That is wrong. In fact, IBM responded to SCO’s arguments, and endeavored to do so efficiently, affording them the attention they deserved, and no more. Thus, IBM respectfully requests that it be granted leave to file a sur-reply memorandum approximately 40 pages in length.

You can feel IBM's outrage, can't you?
In a perfect universe, SCO would sue its lawyers for leading the company down this rabbit hole to bankruptcy and leave the rest of us alone.

Did you ever see the Eddie Murphy skit where he's pretending to be blind and crippled from a tour in Vietnam so he can beg? And two policemen come along and ask him what unit he was with, because they are suspicious, and of course he can only spout nonsense, which tips them off he is not blind or crippled but a fake? They take off his sunglasses and lift him up onto his feet, and he then desperately but cleverly shouts out, "I can see! I can walk! It's a miracle." SCO's arguments that IBM here debunks made me remember that scene, and I feel just like those policemen.

[Update: Anonymous reminds us of an even more appropriate scene from "Through the Looking Glass":

'Contrariwise,' continued Tweedledee, 'if it was so, it might
be; and if it were so, it would be; but as it isn't, it ain't.
That's logic.'

'I was thinking,' Alice said very politely, 'which is the best
way out of this wood: it's getting so dark. Would you tell me,
please?'

But the little men only looked at each other and grinned.

Ah, yes. Do tell us, someone, what is the best way out of this wood? Compare this little tidbit with the final footnote in this document, and you'll be able to make a match.

SCO ignored several court orders to put its list of allegedly misused materials on the table by the deadline, IBM points out, and now seeks to expand its case massively by means of experts reports. Footnote 22 sums it up:

22 SCO asserts that IBM’s allegations of “litigation by ambush” and “flouting of discovery deadlines” in SCO’s words, “have no bearing on IBM’s claim of supposed prejudice”.... That makes no sense. Litigation by ambush, when done by the flouting of discovery deadline or otherwise, is by definition prejudicial. SCO’s brand of sandbagging would have been particularly prejudicial. After three years of discovery and multiple orders to compel, SCO identified 326 lines of allegedly infringing Linux kernel code only to try, after the close of fact discovery and on the eve of summary judgment deadlines, to accuse the entirety of Linux of infringing SCO’s alleged copyrights. SCO insists that it was not acting in bad faith. But the record easily permits a finding that SCO did act in bad faith – the leap from 326 lines of allegedly infringing kernel code to all of Linux is not a leap that can be made in good faith. And even if SCO did not act in bad faith, the Order does not depend on a showing of bad faith. There is no question that SCO acted willfully in submitting its Final Disclosures (as the Court already found) and in submitting its expert reports. No more is required. The Courts’ orders and the Federal Rules of Civil Procedure plainly permit the entry of an order precluding a party from relying on allegations and evidence not identified pursuant to a discovery request or order of the court.

You'll note as you read this that IBM mentions in several places that SCO, by failing to oppose certain matters, has waived them. Here's one example, from page 24 of the document, 28 of the PDF:

Finally, SCO’s reply brief, which focuses almost exclusively on the Scheduling Order, ignores the independent grounds for the Order as to which SCO failed to object. Magistrate Judge Wells based the Order on multiple independent grounds, including the July 2005 Scheduling Order, the parties’ Stipulation re Scheduling Order dated December 7, 2005, this Court’s order dated June 28, 2006, and this Court’s order dated November 29, 2006. Although any one of these grounds is sufficient to justify affirmance of Judge Wells’ decision, SCO’s objections addressed only the Scheduling Order. Thus, as stated in IBM’s opposition brief, SCO waived any objection to independent grounds for the Order, which is by itself dispositive of the present appeal....see also United States v. Hatchett, 245 F.3d 625, 644-45 (7th Cir. 2001) (holding that in “situations in which there is one or more alternative holdings on an issue, . . . failure to address one of the holdings results in a waiver of any claim of error with respect to the court’s decision on that issue”) (internal quotation marks omitted)....

The orders also make clear that the parties were not allowed to proceed as to allegedly misused material not identified with specificity in the Final Disclosures. Indeed, if it were otherwise, these orders would be rendered meaningless, as SCO could fail to meet the requisite level of specificity in its Final Disclosures, and yet nevertheless proceed as to these materials in expert reports and elsewhere. SCO has never directly challenged this proposition in Judge Wells’ June 2006 Order and this Court’s affirmance, and it cannot now challenge the proposition, which is law of the case.

What? SCO's lawyers don't know this? They're lawyers. They don't need a class on waiver or a list of copyright principles. I have concluded that they simply don't care. I don't think it's too far from the mark to state my view that if all lawyers behaved like this, the system would no longer work at all. As it is, I'd call this kind of cynical gaming a wound, and speaking for myself, I feel it. What is civilization but people agreeing to certain rules of the road? If you start to drive on the wrong side of the road because you can move faster to get where you're going quicker, so to speak, is that acceptable? And if no one stops you, what happens next to your civilization? No. Really.

Keep in mind that this court has already ruled, and Judge Kimball has upheld the ruling, that SCO failed to provide sufficient specificity in most of what it filed on its list of allegedly misused materials. They were told to provide specifics, and to the extent they did not, the materials were excised from the case. Now, in what belongs in Ripley's Believe it or Not, SCO actually wastes everyone's time and resources to get the court to rethink whether it should nevertheless overturn the next ruling from the Magistrate, which in effect found that SCO couldn't use materials it never even put on the table. IBM expresses it like this:

SCO ignores the fact that Judge Wells could not have denied IBM’s motion without undermining the Court’s prior orders and the parties’ stipulation. The reasons for affirming the Order here are even more compelling than were the reasons for affirming Judge Wells’ Order of June 28, 2006. The issue presented by IBM’s preclusion motion (the subject of the June 28 Order) was whether SCO could proceed with regard to allegedly misused material that was identified in its Final Disclosures but not with the requisite particularity. Judge Wells held that it could not, and this Court affirmed. The issue presented by IBM’s motion to confine (the subject of the Order), by contrast, was whether SCO could proceed with regard to allegedly misused material that was not identified at all in the Final Disclosures, let alone with the requisite specificity. Again, it cannot be that it was proper for Magistrate Judge Wells to preclude SCO from proceeding as to allegedly misused material that was disclosed in its Final Disclosures, albeit without the requisite specificity (as this Court properly ruled), but that it was improper for her to preclude SCO from proceeding as to allegedly misused material that was not disclosed at all in its Final Disclosures (as SCO incorrectly contends).

Go figure. Like I say, I'm completely stumped as to why SCO's attorneys imagine this can be worth doing. Unless they think we are all so incapable of following the complexity in this case that their sophistry at least has a chance in the court of public opinion. Is that enough to justify this collosal waste? The damage to people's good reputations?

As for SCO's included motion to amend if its request to reconsider is denied, IBM points out the massive prolongation of the case that would result. After all, it took four years of discovery for SCO to come up with a measly 326 lines of code and five months on IBM's side to analyze those allegations, line by line, and do focused discovery, and 11 months for its experts to prepare a defense. Imagine if the court allows SCO now at the 13th hour, to put on the table the entirety of Linux, as it seeks to do. IBM figures we'd be looking at another year of discovery, at least. IBM includes this wry footnote:

26 In all, more than 3500 people have contributed to the development of Linux, including many from SCO. (Seehttp://linux.bkbits.net:8080/
linux-2.6/?PAGE=stats (listing contributors to the linux 2.6 kernel).) Few of these persons have been deposed. If SCO were allowed to pursue a case against every file in Linux, it would likely be necessary to depose many of these contributors, as they are the supposed wrongdoers.

Grand. More pointless depositions of perfectly innocent supposed wrongdoers. Who else can SCO annoy and harass? It would actually be harder than discovery so far, because what SCO is seeking to introduce into the case is nonliteral infringement claims:

The newly challenged and generally-more-abstract material ultimately requires the same arduous code comparison as is required in order to respond to SCO’s literal claims.

Except you couldn't use automated tools, so it'd have to be all manual. And while it's fairly simple to come up with allegations, IBM has to prepare defenses for each line of code. Then you'd have to do new motions after the end of the new discovery.

I don't know about Judge Kimball, but I can't take another year of this Alice in Wonderland upside-down off-with-their-heads cynical performance art by SCO, and I hope he brings the curtain down. Or like at Harlem's Apollo Theater, get a guy with a stick to yank SCO off the stage, will you? Everyone is booing and hissing. Please take a hint. Enough is enough. This case is eating away at my respect for the legal system, which I always thought really did work remarkably well, factoring in that it was all done by imperfect people. And I know I am not the only one whose respect is being challenged. IBM, in fact, raises the issue of fairness:

Finally, SCO’s delay in seeking to challenge the material at issue gives rise to issues of prejudice that could never be solved by additional time. That is especially true where delay alone would be prejudicial, as it would allow SCO to perpetuate fear, uncertainty and doubt about Linux and IBM’s products and services. The added expense associated with re-litigating much of this case would also be prejudicial to IBM....

But for SCO’s identification of only 326 lines of kernel code in response to multiple court orders, IBM would have pursued other discovery from SCO and that includes material that may no longer exist (such as SCO source code relating to the allegedly infringed works and copies of the SCO websites that it refused to produce). Given the enormous number of people and documents relating to the creation of every version of Linux, UNIX, and other relevant systems, there is no question that some SCO and third-party documents may have been lost or deleted, memories may have faded, computers may have been destroyed, and/or witnesses may have become unavailable.

*Refused* to produce websites, eh? See what I mean about driving on the wrong side of the road?

I'm a simple person, who started out with a desire to share with you my love for the law. I also started with a lot of respect for Boies Schiller. But, sadly, I am simple no more.

Defendant/counterclaim-plaintiff International Business Machines
Corporation ("IBM")
respectfully submits this sur-reply memorandum in further
opposition to: (1) the Objections of
the SCO Group, Inc. ("SCO") to Magistrate Judge Wells'
Order of December 21, 2006 (the
"Order"); and (2) SCO's Motion to Amend its December
2005 Submission (the "Final
Disclosures")

Preliminary Statement

IBM's opposition brief debunks the arguments offered by SCO in
support of its
objections to the Order and its motion to amend its Final
Disclosures. Nothing in SCO's reply
papers revives any of SCO's arguments or justifies the relief it
seeks. But SCO's reply papers
distort Judge Wells' order, misstate IBM's position and
mischaracterize the applicable law and
evidence. As is further discussed below (without repeating all of
the points set out in IBM's
opposition brief), Magistrate Judge Wells properly precluded SCO
from reinventing its case at
the thirteenth hour. In fact, this Court's November 29, 2006
order, which held that the parties
may not proceed with respect to any allegedly misused material
not identified with specificity in
their Final Disclosures, plainly precluded SCO's attempt to use
its expert reports to challenge
material not mentioned at all in its Final Disclosures and
compelled Judge Wells' decision.
SCO's stratagem, if allowed, would have resulted in incurable
prejudice to IBM. (See Section I
below.) SCO's fallback motion to amend is likewise flawed for it
is based on essentially the
same grounds as its objections. Putting aside the fact that SCO's
motion to amend is
procedurally improper, SCO has not shown, and cannot show,
"extremely compelling

1

circumstances", as would be required to justify the
proposed amendment. (See Section II
below.)1

Argument

I . SCO'S OBJECTIONS TO THE ORDER ARE BASELESS.

In its opposition papers, IBM described the flaws in SCO's
objections to the Order.
Rather than address those flaws, SCO misstates IBM's position,
distorts Judge Wells' order and
mischaracterizes the applicable law and evidence, which foreclose
SCO's misplaced allegations
of error by Magistrate Judge Wells. Under any standard of
review,2 SCO'S objections lack merit
and should be rejected. Magistrate Judge Wells' ruling should be affirmed.

A. The Schedulimg Order Offers No Support For SCO's
Position.

SCO's primary objection to the Order is that it turned on SCO's
failure to disclose the
complete analyses of its experts in its Final Disclosures, where
the Court's July 1, 2005
Scheduling Order permitted the parties to submit expert reports after
the deadline for submitting

2

their final disclosures. (Obj. at 5-8.) IBM refuted the
objection in its opposition papers, showing
both that the Order was based on grounds independent of the
Scheduling Order (which grounds
SCO failed to challenge) and that the Order did not in fact turn
on SCO's failure to complete its
expert analyses in its Final Disclosures. (Opp'n at 17.) In its
reply brief, SCO essentially
ignores the grounds for the Order that are independent of the
Scheduling Order (discussed in
section I.C. below), and instead misrepresents IBM's position and
twists the Order into a form
SCO contends is objectionable but that bears no relationship to
Judge Wells' ruling.3

1. SCO's RepIy Brief Mischaracterizes the Record.

Contrary to SCO's contention, IBM does not now, and has never,
argued that the material
at issue should be stricken because SCO failed to
"complete" its expert analyses in its Final
Disclosures.4 IBM's
motion before Judge Wells sought simply to preclude SCO from
challenging as misused material that is not identified at all in
its Final Disclosures. The Order
simply grants IBM's motion and, consistent with this Court's
Order of November 29, 2006,
provides, "SCO may not challenge as misused, by expert
testimony or otherwise, any material
that SCO has not specifically identified in its Final Disclosures
of Material Allegedly Misused by
IBM (Docket No. 591)". (12/21/06 Order at 2 (Docket No. 906).)
The notion that Judge Wells

3

required SCO to complete its expert reports in its Final
Disclosures has been invented by SCO in
a misguided effort to find fault with an order that is not only
consistent with numerous other
orders of the Court but that is beyond reasonable challenge. Even
before the Court required the
submission of Final Disclosures and made clear that the parties'
claims would be limited to their
final disclosures, SCO assured the Court that it could do exactly
what Judge Wells did in
granting IBM's motion. (4/21/05 Hr'g Tr. at 95-96 (Opp'n Addendum B).)5

In addition to basing its reply on a distortion of the Order,
SCO asserts that the material at
issue is not "allegedly misused material" and therefore
was not required to be disclosed in its
Final Disclosures. (Obj. Reply at 6.) According to SCO, the
material at issue is merely
immaterial in support of SCO's assertion that previously
identified material was misused", a term
SCO appears to have coined in its reply papers. (Id.) That
is sophistry - reminiscent of
Humpty Dumpty's assertion that when he uses a word, "it
means just what [he] choose[s] it to
mean - neither more nor less". (Lewis Carroll, Through the
Looking Glass Ch. IV (Millennium
Fulcrum Ed. 1991).) By any reasonable construction, the term
"allegedly misused material" is
simply material that a party contends has been misused. And there
is no genuine dispute that
SCO contends that IBM misused the material at issue. SCO has
stated expressly that use of the
material violates SCO's rights. In opposition to IBM's motion for
summary judgment on SCO's
Tenth Counterclaim, for example, SCO accuses IBM of infringing the
very material at issue:

4

"SCO alleges infringement of non-literal elements that
pervade SVr4, including the overall
structure of SVr4, including the selection, arrangement, and
coordination of literal and non-literal sub-elements that make up SVr4".6 (SCO DJ Opp'n Appendix A ¶ 229.)
Moreover, there
is no difference in kind between the new material at issue (a
combination of code and more
abstract elements, such as structures)7 and the material that SCO identified
in the Final
Disclosures (a combination of code and more abstract elements,
such as methods and concepts
and negative know-how).

The fallacy of SCO's assertion that the material at issue is
not "allegedly misused
material" is further exposed by the plain language of the
Order. By its terms, the Order relates
only to "allegedly misused material". (12/21/06 Order
at 2 (Docket No. 906).) If the material at
issue were not "allegedly misused material", then SCO
would have no reason to object to the
Order. Nor would it have any reason to seek to amend its Final
Disclosures, which were
required to include "allegedly misused material" (and a
detailed statement of SCO's allegations),
not all "support" for SCO's allegations of misuse.8 Furthermore, when SCO made
this same

5

argument before Judge Wells (except as to only some of the
material at issue), IBM asked SCO
to stipulate that it does not (and will not) contend that IBM
misused the so-called "supporting
material" not specifically identified as allegedly misused
material in the Final Disclosures.
Notably, SCO declined. If there were any merit to SCO's assertion
that the material at issue is
not "allegedly misused material", then there could be no
reason for SCO not to stipulate that it
does not contend that IBM misused this "supporting
material" and that it does not seek to
predicate a finding of liability on IBM's use of this material.9

2. SCO's Claims About the Cargill Report Lack Merit.

With respect to the Cargill report, which is the biggest
offender of the reports at issue (as
SCO seeks to use it to challenge every file in Linux), SCO's
reply papers further ignore IBM's
arguments, misstate IBM's position, distort Judge Wells' order and
mischaracterize the record.

SCO's objections relating to the Cargill report are based
primarily on the made-up
proposition that the Order sanctioned SCO for not including in
its Final Disclosures "all expert
analysis of the legal theory of copyright infringement pertaining
to Linux" (Obj. Reply at 7), and
thus fail for the reasons stated above and not repeated here. SCO
also claims that Judge Wells
erred in requiring SCO to disclose version, file and line
information for non-literal elements of
the operating systems where that is allegedly not possible, and
in so doing allegedly precluded
SCO from making claims of non-literal infringement, which claims,
SCO says, have been
recognized by the Tenth Circuit. (See Obj. Reply at 7-8.) SCO is wrong.

6

To begin, the Order does not question, or even address, the
theoretical viability of a claim
of non-literal infringement under Tenth Circuit law, which is why
the lengthy legal discussion in
SCO's opening papers is beside the point.10 Nor does it say that SCO cannot
pursue a properly-disclosed claim of non-literal infringement as to code properly
disclosed in its Final Disclosures
and interrogatory responses. The Order simply reiterates the
unassailable proposition -- long
ago law of the case -- that SCO cannot pursue any claim of
infringement (literal, non-literal or
other) except as to allegedly misused material and allegations of
infringement identified with
specificity in its Final Disclosures. The Court has made
perfectly clear that SCO was required
by December 22, 2005 both to specifically identify all allegedly
misused material in its Final
Disclosures and to describe in detail its allegations and
evidence of infringement.11 So, for
example, SCO was required to disclose supposedly infringing
material with details including
version, file and line information (e.g., Linux Version
2.4, File "shm.h", Lines 21-29) and to
explain in detail how, when and why IBM supposedly infringed
SCO's alleged copyrights with
respect to the allegedly misused material identified (e.g., by
shipping it to customer x, or

7

contributing the code to Linux file y). SCO did neither. Thus,
Magistrate Judge Wells properly
precluded SCO from pursuing a claim as to the material at issue.12

SCO's argument that it could not provide version, file and
line information as to "non-literal" elements falls flat because SCO did not just fail
to disclose the supposedly "non-literal"
elements at issue by version, file and line information, it
failed to disclose them at all. This point
bears emphasis: the material at issue on this motion was not
disclosed at all in SCO's Final
Disclosures -- not by version, not by file, not by line, not by
narrative, not at all. As to the
material struck by Judge Wells, SCO's Final Disclosures are
virtually silent. Nor do SCO's
Final Disclosures explain its allegations of infringement, as
also required by numerous orders of
the Court. These are fatal defects in SCO's objections, and an
independently sufficient basis for
affirming the Order, without regard to SCO's failure to disclose
version, file and line
information. IBM's discovery requests and the Court's orders
required SCO to describe its
allegations (including any allegations of non-literal
infringement) and all allegedly misused
material (whether code, method, concept, sequence, structure or
anything else SCO might wish
to challenge) in detail.13 Yet, in the face of these orders,
SCO disclosed none of the material at
issue.14

8

Even if SCO's Final Disclosures were not silent as to the
material at issue, its argument
that it could not provide version, file and line information is
wrong (as was its similar argument
regarding methods and concepts). Allegedly misused material from
an operating system can be
identified by version, file and line -- whether subject to a claim
of literal or non-literal
infringement. In fact, the subjects of an allegation of
non-literal infringement of an operating
system cannot be specifically defined except by reference to
version, file and line information
(e.g., absent version information, one does not even know what
product is at issue). The non-literal elements employed in an operating system (or any computer
program) are in the source
code, just as the plot or characters in a novel are in the
novel's text. (Cf. 4/28/06 Rebuttal Decl.
of Randall Davis ¶¶ 29-30.) SCO seeks to hide behind a
shield of "non-literal material" that
supposedly exists entirely outside the source code, when in fact
its "non-literal" claims merely
allege non-literal infringement of material embodied in source
code. Requiring a party to
disclose its allegations and evidence of alleged infringement by
version, file and line information
does not preclude the party from pursuing a claim of non-literal
infringement.

Notably, in opposing IBM's original motion for summary
judgment on IBM's claim for a
declaration of non-infringement as to Linux, SCO acknowledged
that the material subject to any
allegation of infringement can be identified by version, file and
line information, regardless of

9

whether the alleged infringement is said to be line-by-line
literal infringement or non-literal
infringement relating to structure, sequence or function:

For SCO to obtain all necessary and reasonable evidence to
support its claims and
to oppose IBM's Tenth Counterclaim, SCO must undertake a line-by-line
comparison of Linux code and UNIX code ... [t]o show that Linux code is
substantially similar to UNIX code requires a comparison of
that code ... [i]n
other words, the 4 million lines of Linux code must be compared
with the 3.5
million lines of UNIX code, line-by-line, or in groups of lines
according to the
structure, sequence or function of the group of lines.

(07/09/04 Sontag Decl. ¶¶ 4, 8 (Addendum C hereto).)
More importantly, the Cargill report
actually discussed some of the non-literal elements at issue by
version, file and line information.
For example, regarding ELF, Dr. Cargill states: "The
following code appears in both Linux 2.4
and Linux 2.6. The data structure definition assists in writing
programs to process ELF files."
Dr. Cargill then provides excerpts of lines of code from Linux
version 2.4.11 and Linux version
2.6.15. (5/19/06 Cargill Rpt. at 45.) As another example, with
regard to system calls, Dr. Cargill
also provides an example of source code to demonstrate his claim
regarding "arrangement":
"[t]he chosen names are associated with the numbers by
expressing the arrangement in source
code header files". (5/19/06 Cargill Rpt. at 22.)

SCO's argument about version, file and line information is
merely a restatement of the
argument that it made to avoid providing version, file and line
information with respect to
methods and concepts, which Judge Wells and this Court both
properly rejected. SCO argued
that it could not provide version, file and line information as
to methods and concepts. (See SCO
Opp'n to IBM's Motion to Limit SCO's Claims at 6-7.) Magistrate
Judge Wells rejected the
argument, ruling that there is no reason SCO could not provide
version, file and line information
as to non-literal elements like methods and concepts. (See
6/28/06 Order at 30 (Docket No.
718).) This Court agreed and affirmed Judge Wells' decision.
(See 11/29/06 Order (Docket No.

10

884).) That ruling is law of the case, see Roth v. Green, 466
F.3d 1179, 1187 (10th Cir. 2006),
and forecloses SCO's objections for this additional reason.15

3. SCO's Claims About the Rochkind and Ivie Reports Are
Untenable.

SCO's reply arguments with respect to the Rochkind and Ivie
Reports also offer no
support for SCO's objections. They too misrepresent IBM's
position, misconstrue Judge Wells'
ruling and mischaracterize the record.

As stated in IBM's opposition brief, SCO proffered the
testimony of Evan Ivie and Marc
Rochkind in support of its contract claims. Like the Cargill
report, the Ivie and Rochkind reports
identified allegedly misused material found nowhere in the Final
Disclosures. With respect to
one of the technologies challenged in the Final Disclosures (JFS),
SCO used its expert reports to
allege misuse with respect to six times the volume of material
identified in the Final Disclosures
to support one allegation. Similarly, SCO's Final Disclosures
identify 9,282 lines of code
regarding testing technologies as representing
"misuse". To that the Rochkind report added
25,378 additional lines of code. SCO seeks to justify the
additions on the grounds that it had
identified "the entire JFS file system" and
"substantial numbers of the Dynix/ptx SPIE tests" as
misused material. (Obj. Reply at 9.) SCO argues, in effect, that it
was only required to submit

11

examples of allegedly misused material with the specificity
required by the Court (i.e., version,
file and line information).

In addition to repeating its arguments that the Ivie and
Rochkind reports material is not
allegedly misused material and that Judge Wells improperly
required SCO to complete its expert
reports in its Final Disclosures (which we address above), SCO
argues that IBM's opposition
brief misrepresents SCO's position. At page 9 of its reply brief,
SCO asserts that it does not
contend that it could satisfy its disclosure obligations by
merely submitting "examples" of
"allegedly misused material" in its Final Disclosures and
suggests that IBM invented the
argument as a straw man. (Obj. Reply at 9.) But no sooner does SCO
disclaim the argument at
page 9, than it falls back on the argument at page 10. There SCO
argues that it "properly
identified all of JFS in Item 1 of the December Submission, and then
went beyond that
identification to provide the information it had at that time to
support the point that JFS was
derived from UNIX System V". (Obj. Reply 10.) Put differently,
SCO contends that so long as
its Final Disclosures made a general allegation of misuse as to a
particular technology and
specifically identified some of the elements or lines of code that
comprise that technology, it was
free to use its expert reports specifically to identify as misused
any of the other hundreds of
thousands of elements and lines of code that might comprise that
technology.

As SCO construes the Scheduling Order, the parties could not
only end run their final
disclosure obligations with their expert reports, but they could
also circumvent them with their
Rule 26(a)(3) and other pretrial disclosures. If, as SCO
contends, it was permitted to identify as
much allegedly misused material as it wished in its expert
reports because the Scheduling Order
afforded the parties the opportunity to submit expert reports
following the deadline for their final
disclosures, then there is also no reason it could not identify
still more allegedly misused material

12

by way of its deposition designations or in its part of the
final pretrial order, because the
Scheduling Order also affords the parties the opportunity to
submit deposition designations and a
final pretrial order after the deadline for their final
disclosures. Not only does SCO's reading
make no sense, but it would also make a mockery of the parties'
obligation to provide final
disclosures.

Notably, in seeking to justify its failure to disclose the
material subject to the Court's
Order of November 29, 2006, SCO acknowledged that it could not
challenge as misused material
not identified in its Final Disclosures:

If we were to introduce a new technology not embraced by the
[Final Disclosure
items] they challenge, they object. It's out of the case. If we
try [t]o come up
with specific source code that we should have produced now to buttress a
connection that we didn't disclose that we should have, they
could object to it at
that time saying we should have put it in the December submission.

(4/14/06 Hr'g Tr. at 89 (Addendum D hereto); see also
10/24/06 Hr'g Tr. at 17 ("IBM has full
rights to object ... if we say, "Forget the 294 items. We
have item number 295.") (Addendum
E hereto).) But that is exactly what it tried to include in its
expert reports and exactly what
Magistrate Judge Wells ruled it could not do.

B. SCO's Assertions About Its Supposed Understanding of
the Order and Prejudice
to IBM Are Baseless.

In addition to misconstruing the scheduling order (and
ignoring independent grounds for
the Order discussed in Section I.C. below), SCO claims in its
reply brief that "the record of
SCO's understanding of the July 2005 Order and the absence of
prejudice to IBM precludes the
Magistrate Judge's exclusion of evidence." SCO is wrong.16

13

1. SCO's Claims About Its Purported Understanding Are
Mistaken.

Nothing in SCO's reply brief addresses the flaws in its
argument about its supposed
understanding of the Order or its justification for not complying
with it. Thus, we do not repeat
them here except to address the two points new to SCO's reply
brief, neither of which bears
scrutiny.

First, SCO claims that it was justified in not
disclosing the material at issue because it is
not "allegedly misused material". (Obj. Reply at 13.)
We address this argument in Section I.A.I
above and will not repeat that discussion here except to state
that even if the material at issue
were not allegedly misused material (which it clearly is), the
Court's orders specifically required
SCO to disclose SCO's new allegations of infringement in detail
that is nowhere found in its
Final Disclosures (see 6/28/06 Order (Docket No. 718); 11/29/06
Order (Docket No. 884)),
which is an independent reason to reject SCO's objections.

Second, SCO identified numerous items of allegedly
infringing Linux material in the
very Final Disclosures that it now argues did not require the
identification of all allegedly
infringing Linux material. In an effort to explain this away, SCO
asserts, "In contrast to the
UNIX material that SCO identified in its December Submission, Dr.
Cargill's discussion of the
general structure of SVr4, the structure of the SVr4 file system,
and system calls is a non-literal
legal analysis of copyright infringement that could not be
reduced to source code line, file and
line description." (Obj. Reply at 13-14.) If Dr. Cargill's
discussion were "a non-literal legal
analysis", then it had no place in an expert report and
would be inadmissible as a matter of law
under Fed. R. Evid. 702. See Specht v. Jensen, 853 F.2d
805, 810 (10th Cir. 1988) ("In no

14

instance can a witness be permitted to define the law of the
case."). But put that aside. Dr.
Cargill's report purports not only to describe a theory of
non-literal infringement, but it also
identifies a new set of allegedly misused material (e.g.,
"the overall structure of SVr4", "the
structure of the SVr4 file system" and "system
calls"). SCO's Final Disclosures described
neither the new allegedly misused material identified by Dr.
Cargill nor the theory under which
SCO alleges that it was infringed.17 Thus, Judge Wells properly struck
the material at issue for
two independent reasons.

At bottom, the argument SCO makes to justify its end run of
the Courts' orders is no
different from the arguments SCO made to justify its failure
specifically to identify the methods
and concepts successfully challenged by IBM's motion to limit
SCO's claims. And the methods
and concepts at issue on that motion were no less abstract than
the "system calls" at issue here; in
fact, they were probably more abstract. Yet the Court rejected
SCO's justifications, stating that
Judge Wells' preclusion order should "come as no
surprise". (11/29/06 Order at 4.) As stated,
SCO's failing here is more egregious in that it did not just fail
to disclose the material at issue
with the requisite specificity (as was the case in connection
with IBM's motion to preclude), but
it also failed to disclose it at all. Thus, the Court's prior
ruling compelled Judge Wells' decision
here and requires that SCO's objections be overruled.

15

2. SCO's Claims About Prejudice Are Unsupported and Wrong.

SCO's reply brief advances a laundry list of new arguments
relating to prejudice. None
of those arguments is properly raised in support of SCO's
objections. SCO made no showing
before Magistrate Judge Wells that its effort to reinvent its
case would have been harmless. SCO
mentioned the issue of prejudice in its brief below only in a
footnote.18 (See
SCO Opp'n to
IBM's Mot. to Confine at 16 n.6.) Thus, not only did SCO fail to
meet its burden to demonstrate
that its non-disclosure of the allegedly misused material at
issue was harmless, see
Fed. R. Civ. P. 37(c), but also it waived the right to raise the
issue on appeal. As stated in IBM's
opposition brief, issues mentioned in a perfunctory manner,
issues raised for the first time in oral
argument and issues raised for the first time in objections to a
magistrate judge's
recommendations are deemed waived. (See IBM's Opp'n Br. at 21.)

In any case, SCO's arguments relating to prejudice, each of
which is dealt with in turn
below, are untenable. Like most of SCO's reply brief, the
arguments merely misstate IBM's
position, distort the Court's rulings and/or mischaracterize the
record. Nowhere does SCO show
that allowing it to reinvent its case at the thirteenth hour
would have been harmless. Nor could
SCO carry that burden. SCO's reinvented allegations concerned
massive amounts of allegedly
misused material as to which IBM has not taken discovery (fact or
expert), and the only way

16

IBM could properly prepare a defense to SCO's new claims would
be to redo much of the fact,
expert and summary judgment work that it has spent nearly four years doing.

First, SCO claims that IBM "makes no effort to
explain or illustrate any particular 'fact
discovery' it supposedly needed to analyze any of the evidence at
issue". (Obj. Reply at 14.)
SCO is mistaken. IBM made clear before Magistrate Judge Wells
that if SCO were allowed to
reinvent its case, then IBM would require the same type of
discovery that it took over the last
four years, the particulars of which are familiar to the Court.
(See IBM Op. Memo at 10; IBM
Reply Memo at 10- 11; IBM Opp'n at 4, 7.)19 The principal difference between the
discovery
that IBM took (before discovery closed) and the discovery that
would have been required if
Magistrate Judge Wells had not precluded SCO's reinvention of the
case was one of scope. The
claims SCO sought unsuccessfully to sneak into the case by way of
its expert reports were far
broader than those SCO did identify, and therefore would have
required much more discovery.
Whereas the Final Disclosures identify 326 lines of allegedly
infringing code in the Linux kernel,
SCO sought by the Cargill report to challenge essentially every
file in Linux. The particular fact
discovery that would have been required by the claims SCO sought
to sneak into the case is
further illustrated in Section II.B below.

Second, SCO argues that IBM "makes no effort to
show that its experts tried but could
not respond to SCO's evidence or to substantiate its claim that
the experts could not have
analyzed the evidence in a matter of weeks." (Obj. Reply at
14.) Here again, SCO is incorrect.
In fact, as SCO well knows, IBM made clear before Judge Wells and in
its opposition papers that

17

it would take no less than an additional year (and probably much
longer) to respond to SCO's
belated allegations of misuse. (See IBM Mem. in Support of
Its Motion to Confine at 10; IBM
Reply Mem. in Further Support of Its Motion to Confine at 10-11;
IBM Opp'n at 3-4,7;
11/30/06 Hr'g Tr. at 11, 14-15.) IBM's experts testified that
"[s]ubstantial time and effort would
be required to fully evaluate the new material that Dr. Cargill
identifies as misused but that is not
identified as misused by SCO in the Final Disclosures."
(7/17/06 Kernighan Rpt. (Ex. 214 to the
9/25/06 Shaughnessy Decl.) 14.) IBM's experts devoted
approximately six months to studying
and preparing reports on the 326 lines of Linux kernel code that
SCO identified in the Final
Disclosures. (See 11/30/06 Hr'g Tr. at 11, 14-15.) An
illustration of their analysis appears at
Addendum B. Plainly, reviewing and evaluating all of the files in
Linux (which SCO sought to
put in issue via the Cargill report) would require a very long
time. In opposing IBM's first
motion for summary judgment on IBM's Tenth Counterclaim (seeking
a declaration of non-infringement relating to Linux), SCO represented to the Court
that it would require not less than
25,000 man years to compare just one version of Linux to one
version of UNIX. (7/9/04 Sontag
Decl. ¶ 14 (Addendum Q.)

Third, SCO contends that "IBM says that the
evidence at issue was disclosed 'when
summary judgment briefs were forthcoming,' but SCO produced its
initial expert reports four
months before those motions were due, and IBM never asked to
delay their filing." (Obj. Reply
at 14.) While IBM did not seek to delay the filing of its summary
judgment motions on the basis
of SCO's attempt to reinvent its case, that is because the Court
had made perfectly clear that the
parties would be held to their final disclosures and because IBM
wished not to further delay the
case. To fault IBM for relying on the Court's orders (as well as
the plain language of the Federal
Rules of Civil Procedure), as SCO does here, is to argue that SCO can
deny IBM the benefits of

18

the Court's orders by itself violating those orders. SCO's
argument is also misplaced because, as
stated, it represented to the Court in seeking to avoid entry of
the Scheduling Order, that a court
has a "full ... arsenal of measures" to preclude a
party from using evidence it fails to disclose to
its adversary. (4/21/05 Hr'g Tr. at 95-96 (Opp'n Addendum B).)

Fourth, SCO asserts that "IBM says that 'SCO had
spent more than three years
developing its theory of infringement,' but offers no support for
that assertion." (Obj. Reply at
14.) As outlined in paragraph 136 of IBM's Memorandum in Support
of its Motion for
Summary Judgment on Its Tenth Counterclaim, SCO has made a
plethora of public statements
since 2003 regarding its claim that Linux infringes SCO's
copyrights. (See, e.g., 9/25/06
Shaughnessy Decl. Exs. 367, 368, 372, 383, 478, 479, 480.) If SCO
did not develop its theory of
infringement before it made those statements, then it had no
business making them. If the
discovery SCO demanded of IBM and third parties during the last
four years was not for the
purpose of developing SCO's infringement and other theories, as
it represented to IBM and the
Court, then it had no business demanding it. In any case, IBM's
supposed failure to support its
assertion in no way supports SCO's claim that allowing SCO to
reinvent its case would not have
resulted in prejudice to IBM. It should be self-evident that if
it truly took SCO more than three-and-one half years to describe the allegations it disclosed for
the first time in its expert reports,
then it would require a considerable effort to respond to those
allegations.

Fifth, SCO states that "IBM has argued that Dr.
Cargill's legal analysis requires 'line-by-line analysis' (11/30/06 Hr'g Tr. at 5-6 (Ex. 1)), but Dr.
Cargill's report and the controlling
Tenth Circuit law make clear that no such analysis is even
appropriate, let alone required.
(SCO's Opening Mem. at 9-24 & Part 11, above.)". (Obj.
Reply at 14.) However, IBM argued
not that "Dr. Cargill's legal analysis requires 'line-by-line
analysis"', but that "the nature of

19

[SCO's] claims requires a line-by-line analysis of SCO's
allegations ... and answering [the
questions that naturally flow from the relevant copyright
principles] is by and large, a line-by-line exercise". (See 11/30/06 Hr'g Tr. at 11, 14-15.)
Moreover, there is no question that
preparing a defense to SCO's allegations would require a
line-by-line analysis of the code at
issue, even if that code is not alleged to have been literally
copied, as illustrated by the cases
IBM provided to Judge Wells (and previously provided to this
Court) (see Addendum A) and by
SCO's own cases. The law is clear, for example, that a file of
code cannot be protected by
copyright if it is an idea, a procedure, process, system, method
of operation, concept, principle,
or discovery; if it is unoriginal; if it can be expressed in only
a limited number of ways; if it is
dictated by programming standards, programming practice, computer
hardware design standards,
the practices and/or demands of the industry being serviced, or
the compatibility requirements of
other programs with which it is designed to interact; or if it is
found in the public domain.20
These are file-by-file and line-by-line inquiries. That is the
way IBM's experts (as well as
SCO's Dr. Cargill) analyzed the 326 lines of kernel code
identified in the Final Disclosures (see
Addendum B), and that is the way IBM would have been entitled to
defend itself against SCO's
new allegations.

Sixth, SCO insists that "since the beginning of the
case and of discovery, IBM has
regarded SCO as having brought a claim that Linux is
substantially similar to UNIX System V
under the copyright laws". (Obj. Reply at 14-15.) While IBM and
the rest of the world have

20

long known that SCO generally accuses Linux of
infringement (thus raising the question whether
Linux is substantially similar to UNIX System V), that did
nothing to eliminate the prejudice that
would have resulted from SCO's failure timely to disclose its
specific allegations. The mere fact
that IBM knew SCO accused IBM of infringement does not mean IBM
knew anything more
about SCO's claim. That is why it sought, and the Court ordered,
discovery. Linux includes
millions of lines of code and could theoretically infringe almost
any copyright in innumerable
respects. IBM did not know that SCO sought to challenge the
specific material at issue here until
SCO submitted its expert reports (and even then SCO's allegations
were far from clear). As the
Court recognized in ordering SCO to provide discovery and
disclose its allegations and evidence,
SCO's general assertions did not put IBM in a position to prepare
a defense to claims, which can
only be understood when specified.21

Seventh, in IBM's opposition papers, we explained that
SCO's attempted reinvention of
the case, if allowed, would require a redo of much of the fact,
expert and summary judgment
work of the past four years and necessitate at least an
additional year of discovery. (Opp'n at 20-21.) SCO contends that this assertion "cannot be squared
with the fact that, under this Court's
July 2005 Scheduling Order, following the parties' December 2005
Submissions, the parties

21

would have had three months of fact discovery regarding
truly 'misused material,' six months to
draft initial expert reports, and then three months to
take expert discovery". (Obj. Reply at 15.)
There is, however, no conflict between the fact that SCO's
attempted end run would require
extensive additional proceedings and the fact that under this
Court's July 2005 Scheduling Order,
the parties would have had three months of fact discovery
regarding allegedly misused material
following the parties' December 2005 Submissions. The Court
afforded IBM a three-month
period of discovery about the Final Disclosures, at IBM's
request, after SCO certified that it had
complied with the Court's orders and disclosed all of the
allegedly infringing material
then available to it. IBM proposed a three-month period for
discovery because, as the Court
observed at the time, SCO had disclosed absolutely no evidence of
infringement by Linux,
despite a long-standing obligation to disclose any material
reasonably available to it, including
the new material at issue. Thus, IBM reasonably believed that
three months would be sufficient,
especially since it would have had nearly six months to prepare
an expert report. What IBM did
not know is that SCO would ignore the Court's Order, the parties'
stipulation and SCO's
interrogatory answers and submit an expert report including more
than a thousand times the
allegedly misused material identified in the Final Disclosures.22

22

Finally, SCO argues that "IBM makes no real effort
to explain away the nine cases SCO
cited demonstrating that IBM's opportunity to depose SCO's
experts on the material at issue
defeats the argument that IBM suffered prejudice sufficient to
justify the exclusion of that
material". (Obj. Reply at 16.) But IBM addressed these cases
at page 23, note 8 of its
opposition brief, where it explained that they are all
inapposite. None of the cases deals with
facts even remotely approaching those here. Allowing IBM to
re-depose SCO's experts would
not even have begun to cure the prejudice that IBM would have
suffered if Judge Wells had not
entered the Order. IBM's decision not to examine SCO's experts
about the material it tried to
sneak into the case in its expert reports was not made in an
effort to "preserve a claim of
prejudice by simply declining to ask an expert at deposition
about matters that the party asserts to
be new material", as SCO suggests. Rather, IBM did not
question SCO's experts about the new
material because, among other things, by order of the Court, SCO
was not permitted to challenge
this new material; IBM had not had an opportunity to take fact
discovery concerning the
material; IBM's experts had not had a full and fair opportunity
to study the material; and the time
allotted for expert depositions was limited.23 SCO's assertions relating to
prejudice are, in a
word, baseless.

23

C. SCO Ignores Independent Grounds for Affirmance of the
Order.

Finally, SCO's reply brief, which focuses almost exclusively on
the Scheduling Order,
ignores the independent grounds for the Order as to which SCO failed
to object.

Magistrate Judge Wells based the Order on multiple independent
grounds, including the
July 2005 Scheduling Order, the parties' Stipulation re
Scheduling Order dated December 7,
2005, this Court's order dated June 28, 2006, and this Court's
order dated November 29, 2006.
Although any one of these grounds is sufficient to justify
affirmance of Judge Wells' decision,
SCO's objections addressed only the Scheduling Order. Thus, as
stated in IBM's opposition
brief, SCO waived any objection to independent grounds for the
Order, which is by itself
dispositive of the present appeal. See, e.g., GFF Corp.
v. Associated Wholesale Grocers, Inc.,
130 F.3d 1381, 1387-88 (10th Cir. 1997); Yumukoglu v.
Provident Life & Acc. Ins. Co., 36 Fed.
Appx. 378, 383 (10th Cir. 2002) (Addendum F hereto); see
alsoUnited States v. Hatchett, 245
F.3d 625, 644-45 (7th Cir. 2001) (holding that in
"situations in which there is one or more
alternative holdings on an issue.... failure to address one of
the holdings results in a waiver of
any claim of error with respect to the court's decision on that
issue") (internal quotation marks
omitted).

SCO's reply papers devote only three sentences to the grounds
other than the Scheduling
Order, the first sentence of which merely introduces the topic.
In the second sentence, SCO
argues that the parties' December 2005 stipulation "merely
restates the July 2005 Order and adds
nothing to the analysis". (Obj. Reply at 11.) That is
incorrect (although the July 2005

24

Scheduling Order is by itself dispositive of SCO's objections).
The parties' stipulation not only
provides that "[b]oth parties [were] required to identify
with specificity any and all material that
each party contends the other has misused no later than December
22, 2005", but it also
provides, "Neither party shall be permitted to use [the
period for discovery relating to the Final
Disclosures] for the purpose of identifying additional misused
material not disclosed by the
December 22, 2005, deadline". (12/7/05 Stipulation at 2-3 (Opp'n
Addendum Q.) Yet that is
exactly what SCO did and Magistrate Judge Wells held it could not do.

In the third sentence, SCO argues that Judge Wells' June 2006
Order and this Court's
affirmance of it "address the level of specificity required
for items that were disclosed, not
whether expert opinions and their support constituted 'misused
material"'. (Obj. Reply at 11.)
Here again, SCO is wrong. Judge Wells' June 2006 Order and this
Court's affirmance were not
limited to addressing the level of specificity for items that
were disclosed (though they did that).
The orders also make clear that the parties were not allowed to
proceed as to allegedly misused
material not identified with specificity in the Final
Disclosures. Indeed, if it were otherwise,
these orders would be rendered meaningless, as SCO could fail to
meet the requisite level of
specificity in its Final Disclosures, and yet nevertheless
proceed as to these materials in expert
reports and elsewhere. SCO has never directly challenged this
proposition in Judge Wells' June
2006 Order and this Court's affirmance, and it cannot now
challenge the proposition, which is
law of the case. The mere fact that the orders do not expressly
mention "expert opinions and
their support" does not establish them (or any of the other
means by which the parties could have
disclosed their allegations and evidence, such as deposition
designations and the Final Pretrial
Order) as exceptions to SCO's discovery obligations. SCO's
argument to the contrary relies on
the absence of magic words, and as such is at odds with
well-settled doctrines of construction.

25

SeeYoung v. Workman, 383 F.3d 1233, 1240 (10th
Cir. 2004) (declining to rely upon the
absence of "magic words" in a lower court's holding that a
discovery order was violated).

SCO ignores the fact that Judge Wells could not have denied
IBM's motion without
undermining the Court's prior orders and the parties'
stipulation. The reasons for affirming the
Order here are even more compelling than were the reasons for
affirming Judge Wells' Order of
June 28, 2006. The issue presented by IBM's preclusion motion
(the subject of the June 28
Order) was whether SCO could proceed with regard to allegedly
misused material that was
identified in its Final Disclosures but not with the requisite
particularity. Judge Wells held that it
could not, and this Court affirmed. The issue presented by IBM's
motion to confine (the subject
of the Order), by contrast, was whether SCO could proceed with
regard to allegedly misused
material that was not identified at all in the Final Disclosures,
let alone with the requisite
specificity. Again, it cannot be that it was proper for
Magistrate Judge Wells to preclude SCO
from proceeding as to allegedly misused material that was
disclosed in its Final Disclosures,
albeit without the requisite specificity (as this Court properly
ruled), but that it was improper for
her to preclude SCO from proceeding as to allegedly misused
material that was not disclosed at
all in its Final Disclosures (as SCO incorrectly contends).

II. SCO'S MOTION TO AMEND IS MERITLESS.

Although SCO seeks to accentuate the differences between its
motion to amend and its
objections to the Order, the motion is predicated on essentially
the same grounds as SCO's
objections and should be denied for the same reasons that its
objections to the Order should be
overruled. Contrary to SCO's contentions in its reply brief
(which, like its reply brief in support
of its objections, misrepresents the record): (1) the motion must
be denied absent a showing of

A. SCO's Motion Must Be Denied Absent a Showimz of
"Extremely Compelling
Circumstances".

SCO does not (and could not) dispute that, by order of the
Court, the Scheduling Order
may not be modified except upon a showing of "extremely
compelling circumstances" - the
standard long ago established by the Court. (6/10/04 Order at 3
(Docket No. 177); 7/1/05 Order
at 4 (Docket No. 466).) In reply, SCO argues instead that its
"motion to amend is not a
,modification' of the scheduling order, and thus, would not
require a showing of 'extremely
compelling circumstances"'. (Mot. to Am. Reply at 3.) That is
untenable.

SCO's motion seeks leave to amend its Final Disclosures,
which were required by the
Scheduling Order entered by the Court following SCO's repeated
failures to comply with the
Court's orders and to disclose its allegations and evidence of
alleged misconduct (as Magistrate
Judge Wells and this Court have confirmed). (7/1/05 Order I III
(Docket No. 466).) The
Scheduling Order required submission of the parties' final
disclosures no later than
December 22, 2005. Allowing SCO to amend its Final Disclosures
would plainly represent and
require a modification of the Scheduling Order, including the date by
which the parties were

27

required to finalize their allegations of alleged misconduct. It
would also require a series of
additional changes to the Scheduling Order, such as the
establishment of new deadlines for the
close of fact and expert discovery, new deadlines for summary
judgment, and so on.

In support of SCO's contention that its motion does not seek
"a 'modification' of the
scheduling order, and thus, would not require showing of
'extremely compelling
circumstances"', SCO asserts that "the scheduling order
has already been modified; that SCO's
Motion to Amend is a response to that modification; and that
SCO's Motion to Amend would not
uire any further extension of the trial date other than what has
already occurred". (Mot. to
Am. Reply at 3.) However, the fact that the Court modified the
scheduling order to allow for
argument and decision on the parties' summary judgment motions is
no help to SCO's position,
as the parties agreed to the change and it satisfied the
standard. Putting aside the fact that SCO's
motion was clearly a response to the Order (not the change in the
trial date), SCO's motive in
filing the motion is irrelevant to whether it would require a
change in the scheduling order,
which it clearly would. And, contrary to SCO's contention,
allowing SCO to reinvent its case at
the thirteenth hour would require a shift in the trial well
beyond the date presently contemplated
(for the reasons discussed above and below). None of SCO's
assertions demonstrates that SCO's
motion does not seek a modification of the scheduling order or
that the "extremely compelling
circumstances" standard does not apply.25

28

B. SCO Cannot Establish "Extremely Compelling
Circumstances".

SCO endeavors to show that there are "extremely compelling
circumstances" justifying
the entry of an order allowing SCO to amend its Final Disclosures
in significant respects (eg., to
challenge every file in Linux rather than just 326 lines of
kernel code), nearly 16 months past the
deadline for their submission, after the close of fact discovery,
following extended expert
discovery, and subsequent to the submission of summary judgment
motions and extended
argument on those motions. But the arguments on which SCO relies
offer no justification - let
alone "extremely compelling circumstances" - for a
change in the scheduling order to permit
SCO to amend its Final Disclosures to include the allegedly
misused material stricken by Judge
Wells.

1. SCO's Claim of Good Faith Is Unsupportable and
Immaterial.

To begin, SCO argues that there are compelling circumstances
for the proposed
amendment because, it says, "SCO acted reasonably and
without any bad faith regarding the
expert opinions at issue". (Mot. to Am. Reply at 3.) For the
reasons stated above (see
Section 1.13), the record does not establish that SCO acted
reasonably and in good faith in seeking
to reinvent its case at the eleventh hour. In fact, SCO's
argument that it acted reasonably and in
good faith here is even less persuasive than the argument -
previously rejected by the Court -
that SCO acted reasonably in failing to provide version, file and
line information as to the 187
items of allegedly misused material as to which both Magistrate
Judge Wells and this Court
separately ruled that SCO could not proceed. There, SCO disclosed
something (albeit without
the requisite particularity); here, SCO disclosed nothing as to
the material at issue.

29

Even if (contrary to fact) SCO had acted reasonably and in good
faith in seeking
exponentially to increase the scope of the case when it did, the
absence of bad faith does not
support a finding of "extremely compelling
circumstances". Parties are expected to act in good
faith. Doing what the rules require does not make a compelling
case for affirmative relief, let
alone an extremely compelling case for such relief. No such
showing can be made where, as
here, the proposed amendment is not only unreasonable but also is
unduly delayed and would
result in incurable prejudice to IBM.

2. Allowina SCO to Amend Its Final Disclosures Would
Result in Incurable
Prejudice to IBM.

SCO also argues that it should be allowed to amend its Final
Disclosures on the grounds
that "SCO's amendment would not prejudice IBM". (Mot.
to Am. Reply at 4-6.) Specifically,
SCO contends that since the trial date has been vacated and IBM
would not require much, if any,
additional discovery to prepare a defense to SCO's claims,
allowing SCO to amend its Final
Disclosures to include the allegedly misused material stricken by
Judge Wells could not possibly
prejudice IBM. (Id.) SCO insists that the proposed
amendments would not necessitate any
further delay in the trial date. (Id. at 4.) That is wrong.

Allowing SCO to amend its Final Disclosures to challenge as
misused the material that it
tried unsuccessfully to sneak in through its expert reports would
require extensive additional
discovery (in excess of the discovery required in the case to
date). Not only is the new material
voluminous, but it represents a far greater proportion of the
Linux kernel than the material
identified by SCO in its Final Disclosures. Again, SCO's Final
Disclosures identify 326 lines of
code from twelve Linux kernel files, whereas SCO sought by its
expert reports to challenge
essentially every file in Linux (of which there are more than one
hundred thousand). As stated,
the nature of discovery that would be required regarding the new
material would be similar to the

30

nature of discovery required to date relating to SCO's contract
claims and its allegations of
infringement relating to Linux, except that it would be vastly
broader in scope and more
complex.

Contrary to SCO's suggestion, the discovery that was taken in
the case before fact and
expert discovery closed did not even begin to address all of the
issues implicated by the material
SCO seeks now to include in the case. As stated (and as SCO
itself previously represented),
preparing a case as to the material at issue would require a
file-by-file, line-by-line and element-
by-element analysis. Since the material SCO proposed to include
in the case by amendment is
different from the material identified in SCO's Final
Disclosures, a different analysis, requiring
different discovery, would be required. As to each of the 326
lines of kernel code identified in
SCO's Final Disclosures, IBM undertook to investigate a number of
issues, including (but not
limited to):

The similarity between the System V and Linux code;

Significance of the identified code relative to System V as
an entire work;

The code's authorship for purposes of determining whether it was
independently created;

The degree to which any standards govern the inclusion of
the cited code;

Whether the code appears in publicly available texts;

The originality of the code;

Whether the allegedly infringed code was dictated by
external factors such
as hardware specifications, software compatibility, programming
practice,
and industry demands, to name a few;

Whether the code claimed by SCO consists of mere ideas or an
expression
that has merged with its underlying idea;

SCO's own history relating to the particular code at issue, including
analysis of the particular lines' inclusion in numerous SCO Linux
releases;

31

The applicability of multiple licenses to the precise code
claimed by SCO;
and

Whether the allegedly infringed code was in fact owned by SCO, which
required comparisons to other operating systems such as BSD,
OpenSolaris and MINIX.

At least the same questions would have to be asked, and the
same analysis performed, as to each
of the more than one hundred thousand files SCO now seeks to
introduce into the case.

Preparing a defense to SCO's allegations of infringement
relating to the 326 lines of
kernel code required approximately five months of focused fact
discovery, formal and informal
(after SCO began to identify them in its Interim Disclosures).
Preparing a defense with respect
to these 326 lines of code also required approximately eleven
months of expert discovery. If
SCO's Final Disclosures had disclosed a claim of non-literal
infringement as to the code, still
more discovery would have been required. By way of example,
consider SCO's claim that
Linux infringes seven elements of the System V file system, as
characterized by SCO's Dr.
Cargill. (See Cargill Opening Report at 73-76.) In order to
conduct a proper analysis of the file
system elements challenged in SCO's expert reports, for each
element IBM would be required to,
at the very least:

Analyze the history of the particular file system technology
spanning over
forty years, including its history of inclusion in other
non-UNIX operating
systems;

Research texts relating to the technology and its
predecessor technologies
from which the allegedly infringed material may have been derived;

Research and analyze programming practices, industry
demands, software
compatibility and hardware requirements contemporary with the creation
of the allegedly infringed System V material in order to
determine whether
it was dictated by externalities;

Determine the originality of each file system element
claimed by SCO, as
well as the particular arrangement and coordination of the elements in
concert as implemented in System V;

32

Compare file system elements in System V to those in the allegedly
infringing Linux work in order to determine whether there is in fact
similarity;

Determine whether the elements individually and together
constitute mere
ideas or are so inextricably interwoven with their underlying
ideas as to
have merged with the ideas; and

Trace the creation of the allegedly infringing elements in
Linux in order to
determine whether they were independently created.

If SCO were allowed to proceed as to the new material, at least
an additional year of discovery
alone would be required - and probably much more.26

In arguing that very little, if any, additional discovery
would be required and that it would
not take long to complete that discovery, SCO ignores its own
previous representations about the
scope of discovery that would be required to evaluate claims of
the kind it seeks to add and how
long it would take to complete that discovery. In opposing IBM's
original motion for summary
judgment seeking a declaration of non-infringement as to its
Linux activities, SCO represented to
the Court that substantial discovery would be required for it to
determine the specifics of its
claim (something a party is supposed to know before making
allegations of infringement) and
then illustrated at length the discovery it would require. As to
third-party discovery alone, SCO
stated that it would be required to:

"Determine what third parties IBM has partnered with to
develop Linux
and what work those groups have done . . ."

"Take discovery on Linus Torvalds, the purported
creator of Linux, about
the contributors and contributions to Linux since its inception, and the
maintenance of any records about the development history of
Linux . ."

33

"Take discovery on maintainers of the kernels . . ."

"There are many contributors to the kernels, some who have [sic]
significant contributions to Linux code over the years . . ."

"Many corporations have made contributions to Linux,
and SCO needs to
take discovery on certain of these companies to determine the sources of
their contributions. Also, SCO needs to depose programmers who work
for these companies and made the contributions to determine the sources
of those programmers' code contributions . . ."

"SCO has identified some, but not all, independent
authors of various
portions of Linux code . . ."

"Several private groups also made major contributions
to Linux, so SCO
should also be permitted adequate time to identify and take
discovery from
these entities."

"Many organizations exist whose purpose is to track and
report on
changes to Linux, and in many cases to collect documentation on Linux
and distribute that information. However, such reporting is
generally very
summary, and SCO needs access to the more detailed information these
organizations maintain. . ."

"Licensees and former licensees of UNIX source code to
see if these
entities, their employees, or former employees are contributing UNIX
code to Linux."

(7/9/04 Sontag Decl. ¶ 57 (Addendum Q.) SCO represented
that this and other necessary
discovery, including comparing just one version of Linux to one
version of UNIX, would require
approximately 25,000 man years. (Addendum C ¶ 14.)

The newly challenged and generally-more-abstract material
ultimately requires the same
arduous code comparison as is required in order to respond to
SCO's literal claims.27 Just as a
novel's plot can always be found in the novel's text, so too are
the more abstract elements
claimed by SCO embodied in the system's code. According to SCO
itself, in order to analyze

34

SCO's new claims relating to the selection, arrangement and
coordination of System V, "the 4
million lines of Linux code must be compared with the 3.5 million
lines of UNIX code, line-by-
line, or in groups of lines according to the structure, sequence
or function of the group of lines".
(Addendum C ¶ 8.) Evaluating the new material at issue would
require analysis of most, if not
all, of the more than a dozen versions of UNIX System V software
and the hundreds of versions
of the Linux kernel - a monumental task exceeding that for which
SCO would allot 25,000 man
years.28

While the trial date has been vacated, the time required for
fact discovery alone would
require a significant shift in the contemplated new trial date
(i.e., sometime after the trial in
SCO v. Novell later this year). Notwithstanding SCO's
contrary suggestions, IBM has not been
taking fact and expert discovery regarding the new material since
receipt of SCO's expert
reports. Fact and expert discovery are closed. In addition to the
time that would be required for
fact and expert discovery, as well as expert depositions, more
time would also be required to
brief and argue a new round of motions to compel the missing
detail and a new round of
summary judgment motions. SCO argues that summary judgment
briefing would not need to be
redone because "IBM raised virtually every imaginable argument
in connection with the Tenth

35

Counterclaim motion, and those arguments regarding ownership of
copyrights, licenses,
estoppels and the like are independent of the expert opinions at
issue". (Mot. to Am. Reply at 5
n.5.) As IBM's pending summary judgment motion makes clear, however,
the motions that IBM
would be likely to file relating to new allegations of misuse would
be similarly fact-specific,
focusing on the specific allegedly misused material at issue.29 In asserting otherwise, SCO not
only ignores the fact that IBM's pending motions for summary judgment
were based in
important part on the specific allegedly misused material at issue,
but also SCO ignores its own
argument that summary judgment should be denied because the grounds
raised by IBM are fact
intensive. SCO's suggestion that significant additional summary
judgment proceedings would
not be required is baseless. Just as substantial briefing was
required to deal with the 326 lines of
kernel code in the Final Disclosures, substantial briefing would be
required to deal with the far-
more-voluminous material SCO seeks to add.30

Finally, SCO's delay in seeking to challenge the material at
issue gives rise to issues of
prejudice that could never be solved by additional time. That is
especially true where delay
alone would be prejudicial, as it would allow SCO to perpetuate
fear, uncertainty and doubt
about Linux and IBM's products and services. The added expense
associated with re-litigating
much of this case would also be prejudicial to IBM.31 Moreover, IBM relied upon
SCO's

36

identification of a mere 326 lines of Linux as
allegedly infringing in continuing to support and
develop Linux and in litigating this case. But for SCO's
identification of only 326 lines of kernel
code in response to multiple court orders, IBM would have pursued
other discovery from SCO
and that includes material that may no longer exist (such as SCO
source code relating to the
allegedly infringed works and copies of the SCO websites that it
refused to produce). Given the
enormous number of people and documents relating to the creation
of every version of Linux,
UNIX, and other relevant systems, there is no question that some
SCO and third-party
documents may have been lost or deleted, memories may have faded,
computers may have been
destroyed, and/or witnesses may have become unavailable.32

3. SCO's Claims of Prejudice Are Misplaced.

SCO further claims that it will be prejudiced if its motion
to amend its Final Disclosures
is denied. The only supposed prejudice cited by SCO, however, is
that it would be unable to
present at trial "expert opinions excluded by [the
Confinement] Order". (Mot. to Am. Reply at
6.) While SCO's case might benefit from the opportunity to
disregard the Court's orders
establishing and enforcing the deadline for the Final
Disclosures, its inability to disregard the
Court's orders and conduct a trial by ambush does not constitute
undue prejudice. Far from

37

"undue" prejudice, the inability to proceed as to
material not specifically identified in the Final
Disclosures is precisely the type of "prejudice" SCO
anticipated when it argued before the Court
that the Court had a "full ... arsenal of measures it can
take ... to preclude us from using
evidence" if SCO did not make adequate and timely
disclosures. (4/21/05 Hr'g Tr. at 96 (Opp'n
Addendum B).) As stated in IBM's Opposition Memorandum, a party
cannot establish a claim
of prejudice based on its failure to comply with a Court order.
Cf.Roadway Exp., Inc. v. Piper,
447 U.S. 752, 763-64 (1980); Starlight Int'l, Inc. v. Herlihy,
186 F.R.D. 626, 646 (D. Kan.
1999).33

4. The Material at Issue Was Not Fully Disclosed in
SCO's Expert Reports.

Finally, SCO repeats its claim that the material at issue was
fully disclosed in its expert
reports, despite the contrary showing in IBM's opposition brief.
(Mot. to Am. Reply at 7.) In
response to IBM's showing that all of the material at issue was
not in fact disclosed in SCO's
expert reports, SCO merely repeats the familiar refrain that the
material is not "allegedly misused
material" and thus was not required to be disclosed.
(Id.) As discussed above, that is
demonstrably false. And if it were not, there would be no reason
for SCO's motion, since
Magistrate Judge Wells' order related only to allegedly misused
material. Moreover, even if
SCO's expert reports did disclose the allegedly misused material
with the requisite specificity,
that is not a basis for leave to amend. If it were, each and
every request to amend SCO might
make would have to be granted so long as the material to be added
was identified. SCO's
motion to amend fails because it cannot establish any of the required
elements, and because

38

extremely compelling circumstances do not exist for the addition
of allegedly misused material
not included in SCO's Final Disclosures.

Conclusion

For the foregoing reasons, IBM respectfully requests that this
Court overrule SCO's
Objections to the Magistrate Judge's Order on IBM's Motion to
Confine and deny SCO's
Motion to Amend its December 2005 Submission.

Attorneys for DefendantICounterclaim-Plaintiff
International Business Machines Corporation

39

CERTIFICATE OF SERVICE

I hereby certify that on the 20th day of March, 2007, a true
and correct copy of the
foregoing, together with the addenda thereto,* was electronically
filed with the Clerk of the
Court and delivered by CM/ECF system to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[Address]

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[Address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[Address]

* Addenda B, C, and G were filed under seal and mailed,
postage prepaid, to the above parties.

Exhibit H to 8/28/06 Report and Declaration of B. Kemighan and R.
Davis (filed under seal)

Addendum C:

7/9/04 Sontag Declaration (filed under seal)

Addendum D:

4/14/06 Hearing Transcript

Addendum E:

10/24/06 Hearing Transcript

Addendum F:

Unpublished Opinions

Addendum G:

3n107 Hearing, SCO Handout, Tab 26 (filed under seal)

1 Citations to SCO's
reply memorandum in support of its objections are given as "Obj.
Reply at- ". Citations to SCO's reply memorandum in support
of its motion to amend are given
as "Mot. to Am. Reply at -".

2 SCO does not (and
could not) dispute that the Order is not dispositive and that a non-
dispositive decision of a magistrate judge is subject to being
set aside only if "clearly erroneous
or contrary to law". Fed. R. Civ. P. 72. SCO argues that
"the Court must review de novo the
Magistrate Judge's legal conclusions". (Obj. Reply at 2.)
But the Order does not turn on a legal
conclusion that is contrary to law. SCO has not shown, and cannot
show, otherwise.

3 In a footnote (Obj.
Reply at 2 n. 1), SCO purports to list some of the material identified in
its Final Disclosures. Putting aside the fact that SCO inflates
the volume of the listed material
(e.g., no more than 10,374 (not "160,000") lines
of AIX code relating to JFS are identified in
Item 1), it has little to do with the Order under review. At
issue here is whether SCO should be
allowed to proceed as to allegedly misused material that SCO
failed to disclose in its Final
Disclosures, not the allegedly misused material that it purports
to have disclosed in its Final
Disclosures. The fact that the Final Disclosures purportedly
identify some allegedly misused
material merely reinforces that the Court's orders required the
timely disclosures of that material.

4 SCO has not
identified and cannot identify any evidence to the contrary, and
there is none.
SCO cites only to a statement made by counsel for IBM, after
Magistrate Judge Wells announced
her ruling, in response to a question asked by the Court. But
both IBM's response and the
Court's statement that IBM correctly understood her ruling
plainly relate to "allegedly misused
material", not, as SCO seems to imply, to anything that
might be included in an expert report.
(See 11/30/06 Hr'g Tr. at 63-65.)

5 If (contrary to
fact) the Order were predicated on the proposition that the parties were
required to include all of their expert analyses in their Final
Disclosures, then very little of either
side's expert reports would have survived the Order. Yet, SCO has
never taken that position.
The parties were and are free to use their experts to support
claims as to allegedly misused
material and allegations of infringement identified with
specificity in the Final Disclosures.
Judge Wells' Order does not address this material, as SCO
impliedly concedes. What the parties
were not free to do is to use their expert reports to identify
new material and then support
allegations of misuse with respect to allegedly misused material
not identified in their Final
Disclosures. It is in this respect that SCO violated the Court's
Orders, and it is for this reason
that Judge Wells entered the Order.

6See also SCO
DJ Opp'n at 9 ("In addition, the essential structure of UNIX SVr4 is
appropriated by Linux, giving rise to infringement based on the
theory that this structure is
protected by copyright as a collective work"); 03/07/2007
Hr'g, SCO Handout, Tab 26 ("Linux
copies the overall structure of UNIX") (Addendum G hereto).

7 Dr. Cargill's
report, for example, is replete with allegations of improper copying not
mentioned in SCO's Final Disclosures (i.e., misuse) as to
material nowhere identified in SCO's
Final Disclosures. (E.g., 5/19/06 Cargill Rpt. at 16
("It is my opinion that Linux 2.4 and Linux
2.6 are substantially similar to SVr4 in their overall
structure."); id. at 73 ("It is my opinion that
the selection, arrangement, and coordination of elements that
make up the file system in Linux
2.4 and 2.6 was copied from SW4."); id. at 74 ("the
file system in Linux versions 2.4 and 2.6
copies the design and structure, including the selection,
arrangement, and coordination of the
various elements and sub-structures that form the UNIX SVr4 file
system."); id. at 57 ("In short,
the LiS: Streams module mimics the entire structure of SVr4
Streams framework.").

8 If SCO's reply brief
shows anything, it is that sustaining SCO's objections would require a
rewrite of the Order to include in it the supposedly offending
provisions to which SCO objects.
Again, the Order says simply that SCO cannot proceed as to
allegedly misused material not
identified with specificity in the Final Disclosures. The
features of the Order about which SCO
complains are not part of it and would have to be written in. A
magistrate judge's order cannot
be set aside on the basis of provisions that are not part of the
order but that would have to be
added.

9 Nothing could be
easier than for SCO to stipulate, for example, that it does not contend
that use by IBM of the Linux file system or the overall structure
of Linux infringes SCO's
alleged UNIX copyrights.

10 SCO's assertion
that IBM failed to address "the detailed analysis of the relevant
precedent" and thus cannot contradict "that Dr. Cargill
properly performed the expert analysis
required by Tenth Circuit copyright law" (Obj. Reply at 8)
is meritless. Whether or not Dr.
Cargill properly performed his analysis of copyright infringement
(which IBM in no respect
concedes) has no bearing on whether SCO was required to identify
the allegedly infringed
material in its Final Disclosures (which it indisputably was
required to do). SCO's citation to the
case law on copyright infringement is simply another way it is
attempting to recast what is truly
"allegedly misused material" as "expert
analysis." And its attempt fails in this instance as well.

11 In fact, counsel
for SCO described SCO's dual obligations: "[t]here are two separate
interrogatories that talk about identifying, with specificity, by
file and line of code, source code,
and then there's one describing, in detail, how IBM is alleged to
have infringed plaintiff's
rights". (4/14/06 Hr'g Tr. at 39.)

12 In its Final
Disclosures, SCO identified a small set of allegedly misused material by
version, file and line - to be specific, 326 lines of code from
the Linux kernel. It did not, for
example, explain in detail its allegations of how, when and why
IBM supposedly infringed
SCO's alleged copyrights (as explained in IBM's motion for
summary judgment on this ground).
With respect to the material struck by the Order, SCO neither
identified it in its Final
Disclosures, nor explained in detail how, when and why IBM
supposedly infringed it.

13 For example, on
December 12, 2003, the Court ordered SCO "[flo respond fully and in
detail to Interrogatory Nos. 1-9 as stated in IBM's First Set of
Interrogatories" and "[flo respond
fully and in detail to Interrogatory Nos. 12 and 13 as stated in
IBM's Second Set of
Interrogatories." (12/12/03 Order ¶¶ 1-2 (Docket
No. 94).) On March 3, 2004 the Court ordered
SCO "[tlo fully comply within 45 days of the entry of this
order with the Court's previous order
dated December 12, 2003." (3/3/04 Order at 2 (Docket No.
109).) Thus, the Court required
SCO to describe in detail its allegations of misuse, including
how IBM is alleged to have
infringed SCO's alleged copyrights relating to UNIX System V Software.

14 In seeking to
justify its failure to disclose the material at issue in the Court's order of
November 29, 2006, counsel for SCO acknowledged that abstract
items such as methods and
concepts must be disclosed in detail. (SCO's Obj. to Order
Granting in Part IBM's Mot. to Limit
SCO's Claims at 16 ("SCO agrees that that it would have been
insufficient for SCO to have
'generally' identified methods and concepts"); see also
SCO's Mem. in Opp'n to IBM's Mot. to
Limit SCO's Claims Relating to Misused Material at 6-7.) Again,
SCO failed to disclose the
items at issue at all.

15 In this and other
respects, SCO's objections are a not-so-thinly-veiled attack on the
Court's order of November 29, 2006. As stated in IBM's opposition
brief, the Court's order of
November 29, 2006 compelled the ruling under review. The issue
presented by IBM's
preclusion motion (the subject of Judge Wells' June 28, 2006
Order and this Court's
November 29, 2006 Order) was whether SCO could proceed with
regard to allegedly misused
material that was identified in its Final Disclosures but not
with the requisite particularity. Judge
Wells held that it could not, and this Court affirmed. The issue
presented by IBM's motion to
confine (the subject of the Order), by contrast, was whether SCO
could proceed with regard to
allegedly misused material that was not identified at all in the
Final Disclosures, let alone with
the requisite specificity. It cannot be that it was proper for
Magistrate Judge Wells to preclude
SCO from proceeding as to allegedly misused material that was
disclosed in its Final
Disclosures, albeit without the requisite specificity (as this
Court properly ruled), but that it was
improper for her to preclude SCO from proceeding as to allegedly
misused material that was not
disclosed at all in its Final Disclosures (as SCO incorrectly
contends).

16 While SCO
apparently claims that IBM invoked Rule 37 for the first time "in oral
argument before the Magistrate Judge" (Obj. Reply at 12),
IBM expressly invoked Rule 37 in the
first instance in the first paragraph of its initial motion.
(See Docket No. 695.) Thus, there was simply no "ambiguity inherent in IBM's motion as to whether
IBM sought a sanction pursuant to
Rule 37." (Obj. Reply at 12.)

17 SCO's briefs
confuse and conflate the difference between "allegedly misused
material"
and its theory of infringement, leading it to refer to elements
like "system calls" as "non-literal
legal analysis". But neither system calls nor any of the
other new allegedly misused material at
issue is either "non-literal" or "legal
analysis"; it is simply a part of the operating systems that
SCO contends were misused. The fact that SCO's claims as to the
new material are more
abstract than some of its claims as to allegedly misused material
that SCO identified in its Final
Disclosures does not mean that the new material is
"non-literal" (which is merely a description
of a theory of infringement). Nor does it mean that more abstract
material cannot be identified or
located by version, file and line information (as described above).

18 SCO devoted only
a footnote to addressing the prejudice caused by its new claims. (SCO
Opp'n to IBM's Mot. to Confine at 16 n.6.) And there it argued
only (and incorrectly) that IBM
would not require more than three additional months to address
the new material. (Id.) That was
more than enough time, said SCO, because "[u]nder the
Court's schedule, IBM was provided
only three months of fact discovery, until March 2006, following
the submission of the
December 2005 reports." (Id.) In so arguing, SCO
ignored the fact that any additional delay in
these proceedings would have been prejudicial to IBM. Moreover,
SCO mischaracterized the
nature of the three-month discovery period previously provided by
the Court (as discussed
below).

19 IBM provided
Judge Wells a long list of the precise kinds of questions as to which fact
discovery would be required. (See 11/30/06 Hr'g Tr. at
6-7.) A copy of the list, which was
previously provided to Judge Wells and this Court in connection
with other briefing, is attached
at Addendum A.

21 Notably, SCO
previously told the Court that the very SCO public statements that it now
says gave IBM notice as to the identity of the specific allegedly
misused material at issue were
insufficient even to permit IBM to assert a claim against SCO for
a declaration of non-
infringement. (See Reply Mem. in Supp. of SCO's Motion to
Dismiss or Stay Count Ten of
IBM's Second Amended Counterclaims at 12, 14-16 (Docket No.
254).) Moreover, in opposing
IBM's original motion for summary judgment on IBM's Tenth
Counterclaim (months after the
statements SCO contends gave IBM notice), SCO told this Court
that it had not yet determined
what specific parts of Linux allegedly infringed SCO's alleged
UNIX copyrights. (SCO's Mem.
In Opp. to IBM's Mot. for Summary Judgment on its Tenth
Counterclaim at 61 (Docket No.
206).) It is on the basis of these same statements that the Court
remarked (in denying without
prejudice IBM's original motion for summary judgment on its Tenth
Counterclaim) that SCO
had not identified any competent evidence of infringement.
(2/8/05 Order at 10 (Docket No.
398).) It cannot be that SCO's public statements gave IBM notice
that SCO intended to
challenge the material at the beginning of discovery but that SCO
could properly omit that
material from its Final Disclosures near the end of discovery.

22 SCO asserts that
IBM's allegations of "litigation by ambush" and
"flouting of discovery
deadlines" in SCO's words, "have no bearing on IBM's
claim of supposed prejudice". (Obj.
Reply at 16-17.) That makes no sense. Litigation by ambush, when
done by the flouting of
discovery deadline or otherwise, is by definition prejudicial.
SCO's brand of sandbagging would
have been particularly prejudicial. After three years of
discovery and multiple orders to compel,
SCO identified 326 lines of allegedly infringing Linux kernel
code only to try, after the close of
fact discovery and on the eve of summary judgment deadlines, to
accuse the entirety of Linux of
infringing SCO's alleged copyrights. SCO insists that it was not
acting in bad faith. But the
record easily permits a finding that SCO did act in bad faith -
the leap from 326 lines of
allegedly infringing kernel code to all of Linux is not a leap
that can be made in good faith. And
even if SCO did not act in bad faith, the Order does not depend
on a showing of bad faith. There
is no question that SCO acted willfully in submitting its Final
Disclosures (as the Court already
found) and in submitting its expert reports. No more is required.
The Courts' orders and the
Federal Rules of Civil Procedure plainly permit the entry of an
order precluding a party from
relying on allegations and evidence not identified pursuant to a
discovery request or order of the
court.

23 SCO suggests that
IBM could not have suffered prejudice because the parties agreed that
there would be a period of expert discovery following their Final
Disclosures and "it is the
specific period of expert discovery that serves as the means of
interrogatory responses". (Obj.
Reply at 16.) Putting aside the fact that this argument is little
more than a repackaged, but still-
untenable justification for SCO's failure to comply with the
Court's orders, the fact that the
parties agreed to a period of expert discovery says nothing about
whether SCO could disregard
the Court's orders that SCO disclose its allegations and evidence
in advance of expert discovery
in order to provide IBM and its experts a meaningful opportunity
to prepare a defense as to all of
the allegedly misused material that SCO seeks to include in the
case. In fact, it is SCO's misuse
of the period of expert discovery that would have resulted in
prejudice to IBM but for Judge
Wells' order. Notably, SCO stipulated and agreed with IBM that
"Neither party shall be
permitted to use [the period for discovery relating to the Final
Disclosures] for the purpose of
identifying additional misused material not disclosed by the
December 22, 2005, deadline".
(12/7/05 Stipulation at 2-3 (Opp'n Addendum Q.) Magistrate Judge
Wells properly relied on
this stipulation in entering the Order and not allowing SCO to
use the period for discovery
relating to the Final Disclosures for the purpose of identifying
additional misused material.

24 As stated in
IBM's opposition papers, SCO's motion is procedurally flawed. Neither
SCO's motion nor its memorandum contains any citation to any
"rules, statutes, or other
authority justifying the relief sought" as DUCivR7-1(b)(1)
requires. DUCivR 7-1(b)(1). In an
attempt to overcome this flaw, SCO points to the cases cited in
its opening memorandum.
However, the mere citation of cases, especially cases addressing
a number of different issues,
does not meet the requirements of DUCivR 7-1(b)(1). That is
especially so where, as here, the
cases in question merely relate to SCO's mistaken claim that
allowing it to amend would not
result in prejudice to IBM. Putting aside the fact that all six
of the cases cited by SCO are easily
distinguished, none of them involved a motion to amend a
court-ordered disclosure. And,
notably, three of them involved motions to amend a complaint,
which, according to SCO's own
papers (Mot. to Am. Reply at 3 n.2), Wolfson v. Lewis, 168
F.R.D. 530, 533 (E.D. Pa. 1996); Karbon v. Turner, No. 91-337,
1991 WL 319976, at *2 (E.D. Wis. Dec. 16, 199 1) (Obj. Ex. G);
Pub. Serv. Co. of N.H. v. Westimzhouse Elec. CgM., 685 F.
Supp. 1281, 1290 (D.N.H. 1988), are
inapposite for that reason alone.

26 In all, more than
3500 people have contributed to the development of Linux, including
many from SCO. (Seehttp://linux.bkbits.net:8080/
linux-2.6/?PAGE=stats
(listing contributors
to the linux 2.6 kernel).) Few of these persons have been
deposed. If SCO were allowed to
pursue a case against every file in Linux, it would likely be
necessary to depose many of these
contributors, as they are the supposed wrongdoers.

27 In fact, the more
abstract nature of SCO's allegations makes the comparison process even
more difficult, since tools available for analyzing allegations
of literal copying cannot be utilized
readily against claims of non-literal infringement. Defending
against SCO's new claims would
be an almost entirely manual exercise involving vast quantities
of code.

28 While IBM argued
in its reply memorandum in support of its 2004 motion for summary
judgment on its declaratory judgment claim that the only
materials SCO required to conduct a
comparison of Linux and UNIX are the products' code itself, this
is entirely consistent with
IBM's argument here. At that juncture in this case, "SCO
ha[d] not offered any competent
evidence to create a disputed fact regarding whether IBM has
infringed SCO's alleged
copyrights", and IBM sought to rebut SCO's argument that it
could nevertheless find evidence of
infringement beyond that which it could find in the operating
systems' source code through
depositions and other additional discovery. (2/9/05 Order at 10.)
At issue on this motion to
amend, however, is the tremendous amount of evidence that would
be required to support IBM's defenses a ainst broad
allegations of infringement, including defenses such as estoppel,
independent creation, and possession of valid licenses. While a
plaintiff's search for code
similarities may be automated relatively easily, the process of
defending against the new
allegations of infringement here would be almost wholly manual.

29 Consider, for
example, the file-by-file, line-by-line analysis required for IBM's arguments
that it has multiple licenses to the material at issue and that
it is dictated by externalities. (See IBM's Mem. in Supp. of
Its Mot. for Summary Judgment on Its Tenth Counterclaim at 51-55,
60-64.)

30 Lest there be any
doubt, the new case SCO seeks to bring would not be trial ready upon
the completion of summary judgment proceedings. The parties would
be required to prepare and
submit a new wave of Rule 26(a)(3) and other pretrial disclosures.

32 SCO includes a
list of what it asserts "will be true by the time of trial"
in an effort to
demonstrate that IBM will not be prejudiced by SCO's last-minute
reinvention of its case. (Mot.
to Am. Reply at 8.) However, SCO's list ignores the reality of
what it is asking the Court to do
by amending the Final Disclosures. The amendment sought by SCO
would create new
allegations of misuse against which IBM would, for the first
time, have to defend. Despite this,
all of SCO's assertions appear to assume that although these
claims would only be brought
pursuant to the present motion to amend, IBM should have begun
years ago building a case,
deposing witnesses, and conducting expert analysis of claims not
yet made. As for SCO's
assertion that IBM was aware of these new allegations of misuse,
if the Final Disclosures were to
have any purpose whatsoever, the general knowledge by IBM that
SCO alleges that Linux is a
derivative work of UNIX System V cannot have provided IBM cause
to defend against
unspecified claims relating to every file in Linux.

33 Indeed, SCO seeks
to eliminate categories of discovery sanctions from the Court's
arsenal. If SCO is correct that a court's sanction preventing a
party from proceeding as to
material not properly disclosed constitutes prejudice sufficient
to support a motion to amend the
discovery filing, then such sanctions would cease to have any
meaning as the mere existence of
the sanction would provide cause to moot it.